CSPC Issues Guidance on Inventory and Recalled Products under Consumer Product Safety Act of 2008

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September 19, 2008

The Consumer Product Safety Commission (CPSC) has issued two memoranda on the implementation of the Consumer Product Safety Act of 2008 (H.R. 4040), which was enacted on August 14, 2008 as Public Law 110-314.  The Act affects a variety of consumer products such as children’s toys, products containing lead, all terrain vehicles, and more.

Due to different timeframes for implementation set forth within the Act, numerous questions have arisen concerning its applicability to products in inventory and limitations on the sale, import, and export of non-complying and recalled products. As a result, CPSC has stated that each provision must be examined individually.

On inventories, CSPC has suggested the following:

-Third-party Testing/Certification: The requirement would not apply to inventory that was manufactured before 90 days after the CPSC has established and published notice of requirements for accreditation of third-party conformity assessment bodies.

-Tracking Labels: The law dictates that the manufacturer of a children’s product shall place permanent distinguishing marks on the product and its packaging effective August 14, 2009. Since the time for placing distinguishing marks is generally at the time of manufacture, this requirement would be difficult to apply to prior inventory.

­-Toy Safety Standard: The provisions of ASTM International Standard F963-07 Consumer Safety Specifications for Toy Safety are only applicable to consumer products manufactured after the effective date (February 10, 2009).

-Lead Content in Children’s Products: Products that contain lead above the limits set forth in P.L 110-314 cannot be sold from inventory or remain on store shelves after February 10, 2009. They will be treated as a banned hazardous substance.

-General Lead Paint Ban: The new general limit would ban the sale of any product containing amounts over the new lead paint limit of 90 ppm in inventory or on store shelves as of August 14, 2009.

-4 Wheeled ATVs: The new American National Standard ANSI/SVIA -1-2007, to be published 90 days after P.L. 110-314’s enactment, will be effective 150 days after publication. It will apply only to products manufactured after that effective date.

On recalled products, the CSPC states that P.L. 110-314 gives it the authority to ban the sale of such items. CSPC is still considering whether or not the prohibition will be extended to any product ever recalled, but said it will likely focus on newer recalls.

Also, P.L. 110-314 strengthens CPSC’s authority over the import or export of non-complying and recalled products. Prior to enactment, these products may have been returned; now destruction will be the norm.

At a September 4, 2008 public meeting, the CPSC recognized the complexity of the new law and the major impact it will have on those who make and sell consumer products. The CPSC also noted that the law’s implementation will require about 40 new rulemaking proceedings within an abbreviated period. Due to this condensed schedule, the CPSC will ask for advance comments via its website, and is warning the public that it might not be able to take last minute submissions into account. The agency is also reaching out to foreign governments, especially China, to explain the provisions of the Act.